4 ways Congress could either protect your rights, or instead assault them

Will Obama’s second term finally fulfill his 2008 promises? (Part III)
November 19, 2012
Congress turns to civil liberties
December 2, 2012

This year’s post-election “lame duck” congressional session presents several disturbing threats—alongside exciting opportunities—for fundamental civil liberties. [See below for updates since this post was originally written.] Measures extending government authority to conduct dragnet warrantless wiretapping, and arbitrarily detain Americans in domestic military detention without trial, have passed the House and now loom before the Senate. Yet members of Congress willing to do their jobs could support alternative measures to protect privacy and dissent. Will our government’s assault on privacy and due process continue, or instead recede in the face of long overdue checks and balances?  The answer turns largely on whether your federal representatives hear from you. BORDC launched an online petition last week to help raise your voice as part of a grassroots transpartisan chorus. It includes four requests of federal representatives, relating to FISA, the NDAA, the JUSTCE Act, and ECPA. (If any of those acronyms are unfamiliar, this post is for you.)

1. Vote against the proposed extension of the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA) until the National Security Agency finally answers congressional questions about how many Americans have been impacted by the agency’s admitted violations of FISA’s permissive boundaries.

Having already received approval from the House for a five-year extension, the National Security Agency’s controversial warrantless wiretapping program is now pending before the Senate, despite having been repeatedly struck down as unconstitutional by federal judges around the country for violating constitutional rights including the Fourth Amendment freedom from unreasonable search and seizure. Authorizing the NSA to monitor, record, and store the electronic communications (such as email) and phone calls of everyday (and potentially all) Americans without any judicial review or independent oversight, the NSA’s program authorized by FISA a is the very definition of an unreasonable search. The Senate should reject the proposed extension of the NSA’s powers, following President Obama’s unfilled promise during the 2008 campaign to subject the program to independent oversight. At the very least, the Senate should insist on answers to congressional information requests, including questions from Sen. Ron Wyden (D-OR) asking how many Americans were impacted by the NSA’s admitted violations of the law in the past.

2. Co-sponsor the JUSTICE Act to (a) prohibit the NSA’s bulk intelligence collection without individualized suspicion of criminal activity, as the Constitution requires, and (b) overrule the Supreme Court’s decision in Holder v. Humanitarian Law Project and reinstate an intent requirement to justify convictions for “material support” of terror.

Earlier this year, Senator Jeff Merkley (D-OR) introduced the Protect America’s Privacy Act (PAPA) as an alternative to the extension of the 2008 FISA Amendments. While a much better alternative than the house Bill extending FISA for the next five years, PAPA resigns two major elements of the JUSTICE Act developed by former Senator Russ Feingold (D-WI), the sole member of the Senate to vote against the USA PATRIOT Act over a decade ago. In particular, the JUSTICE Act would prohibit bulk intelligence collection by the NSA unhinged from individual suspicion of wrongdoing, as required by the Fourth Amendment to justify government searches. In sharp contrast, architects of the NSA’s program claim that the government is wiretapping essentially everyone, without the judicial warrants long required by our Constitution. JUSTICE would also reform the material support statute to require prosecutors, when seeking convictions for material support for terrorism, to prove that defendants knowingly intended to support violence. In sharp contrast, Holder v. Humanitarian Law Project authorized guilt by association, allowing prosecutors to secure convictions without establishing—or even alleging—a defendant’s intent to support violence. The JUSTICE Act is the only proposed measure that would revise the material support statute, and the only bill that would bar the NSA from conducting intelligence collection en masse, as it has done since illegally launching its program in secret a decade ago.

3. Vote against the proposed re-authorization of the National Defense Authorization Act (NDAA) until it is amended to strike sections 1021 and 1022 from the NDAA of 2012. Those sections could potentially authorize indefinite and arbitrary military detention within the United States, with all the historical horrors that have accompanied such unrestrained and unconstitutional executive power.

The 2012 version of the NDAA was a constitutional abomination, including within it provisions that could be cited as authorization for arbitrary and indefinite military detention within the US without evidence or proof of crime. Unlike the fleeting and shameful periods in our nation’s past employing military detention, such as the Japanese-American internment, the NDAA’s detention provisions are entirely unbounded. They could be applied to anyone, whether on the basis of ethnicity, religion, political point of view, or even mere association. Many confused observers, and even members of Congress, find solace in section 1021(e), secured through a December 2011 negotiation in exchange for the Obama administration’s agreement not to veto the bill. While claiming on its face not to change existing authorities, however, even this provision leaves in place a disturbing basis for the executive branch to claim a legal justification for arbitrary detention without trial within the US. Since the 9-11 terror attacks, our government has already relied on the 2001 Authorization to Use Military Force (AUMF) in Afghanistan to justify detaining a US citizen in military custody without trial. In other words, section 1021(e) could ratify a claim of executive power unheard since the second World War. Meanwhile, fluid definitions of a “belligerent act” or “associated forces” create plenty of legal leeway for future Presidents, if not this one, to abuse the law and arbitrarily detain political opponents, vulnerable ethnic minorities, or anyone else. Journalists, concerned about being militarily detained as punishment for interviewing dissidents hostile to US policies, have already secured a court order suspending the law, which was itself suspended pending an ongoing appeal before the US Court of Appeals for the Second Circuit. [Update: on Thursday, November 29, the Senate voted 67-29 to approve an amendment offered by Senators Dianne Feinstein (D-CA) and Rand Paul (R-KY) that aimed to assure that US citizens will not be subjected to military detention without trial, while unfortunately creating other problems, including reinforcing the use of the 2001 Authorization to Use Military Force (AUMF) in Afghanistan as a basis for domestic military detention, inviting domestic military deployment in violation of posse comitatus, and creating a regime of unequal rights for immigrants that could destabilize other rights over time.]

4. Co-sponsor, and vote in favor of, proposed amendments to the Electronic Communications Privacy Act (ECPA) of 1986 to protect Fourth Amendment rights and uphold the integrity of law enforcement in the digital age. With our nation’s privacy laws now profoundly out of date, it is important that emails, online documents, and text messages finally gain the same protections from unreasonable search and seizure as phone calls, postal mail, and paper documents.

When ECPA was first passed in 1986, it aimed to protect online communications from arbitrary government surveillance by requiring judicial warrants for any search, unless an individual chose to “leave” data online for over six months rather than download and delete it. Since then, the cloud computing revolution has transformed online practices, allowing the Justice Department to evade the constitutional warrant requirement and access private documents stored online with a mere subpoena, immune from judicial oversight. This gaping hole in the Fourth Amendment concerns Americans from across the political spectrum and must be updated. BORDC is part of the Vanishing Rights and Digital Due Process (DDP) coalitions. DDP is a remarkably diverse group of advocates and businesses also including Microsoft, Google, Apple, and AT&T. While our coalition members disagree on many issues (such as the 2008 FISA amendments and JUSTICE Act), we emphatically agree that digital documents should receive the same privacy protections as paper documents. [Update: on Thursday, November 29, the Senate Judiciary Committee voted to approve proposed amendments to the Electronic Communications Privacy Act of 1986 to require judicial warrants for digital data stored online. While the reforms represent a historic evolution of the law in response to advancing technology and changed social practices, it remains merely one step forward, with others remaining to be desired. Even under the proposal endorsed by the committee, for instance, government agencies could secure access to any private data on demand, without a judicial warrant, merely by claiming it to be relevant to a national security investigation.] Constitutional rights and principles are important to all Americans, yet leaders from each of the major political parties, in spite of their oaths of office, remain committed to assaulting them. Raise your voice today!